ADVOCATES:Ernest G. Lannet - appointed by the Court, argued the cause for the respondentMary H. Williams - Solicitor General of Oregon, argued the cause for the petitioner

Facts of the case

Thomas Eugene Ice was convicted in state court in Oregon on two counts of first-degree burglary with intent to commit sexual abuse, as well as two counts of first-degree sexual abuse committed during those burglaries. Over Ice's objection, the trial court imposed consecutive sentences based on its own findings of fact. Ice appealed, raising the question whether the Oregon or U.S. Constitutions require a jury, rather than a judge, to make the factual findings upon which a court decides to prescribe consecutive sentences.

The Oregon Court of Appeals held that the consecutive sentences were not in violation of the State's Constitution because none of the factual issues reviewed by the judge were an "element" of the crime. However, the sentences did violate the Sixth Amendment of the U.S. Constitution because the factual findings were not made by a jury but were used to increase Ice's punishment to more than what the jury had imposed.

Question

Do consecutive sentences imposed upon a criminal defendant based on factual findings made by a judge, rather than jury, violate the Sixth Amendment of the United States Constitution?

John G. Roberts, Jr.:

Ruth Bader Ginsburg:

In Apprendi v. New Jersey decided in 2000 and subsequent decisions, this Court interpreted the Sixth Amendments jury-trial guarantee.

The Court held the facts operating to increase the maximum punishment for a particular offense forward in the province of the jury to decide.

Thus far, the Court has applied Apprendi only in the offense specific context that supplied the historic grounding for the decision.

The question here presented concerns Apprendi's applicability to a sentencing function in which the jury traditionally played no part.

When a defendant has been tried by jury and convicted of multiple offenses, each subject to discrete sentencing prescriptions who decides whether the sentences shall be served one after the other, that is consecutively, or at the same time, concurrently the judge or the jury.

Most States in line with the common-law tradition leave the choice entirely up to the judge.

In some States, the presumptive rule is that sentences for multiple offenses shall run consecutively.

Sentencing judges however have discretion to order concurrent service of two or more sentences upon finding cause therefore.

Still other States including Oregon entrust the choice to judges but constrain judges' discretion by requiring them to find certain facts before imposing sentences that run consecutively.

Beyond doubt, the State may proceed on the first two tracks I just described without transgressing the Sixth Amendment.

The sole issue in dispute is whether the Sixth Amendment precludes the course chosen by Oregon and several of her sister States.

An Oregon jury found respondent, Thomas Ice, guilty of six offenses, two counts of first-degree burglary each committed on different occasions and two counts each of them including two distinct sexual assault crimes.

Each of the paired assault crimes coincided with one of the burglaries.

The sentencing judge then made findings that under Oregon law permitted him to impose consecutive sentences.

First, the two burglaries constituted separate incidents.

Second, Ice displayed willingness to commit more than one offense during each criminal episode and further his conduct caused qualitatively different harm to the victim.

Based on these findings, the judge ordered consecutive service of Ice's sentences.

A divided Oregon Supreme Court reversed.

The majority held that the rule advance in Apprendi require the jury and not the jury to find the facts essential to the imposition of consecutive sentences.

Apprendi aimed to preserve the jury's historic roles as a bulwark between the State and the accused at the trial determining defendant's guilt or innocence of an alleged defense.

Our opinion makes it clear that the Sixth Amendment does not countenance legislative encroachment on the domain reserved for the jury under longstanding common-law practice.

Our inquiry is in large part historical with those who framed our Bill of Rights have regarded a particular fact as within the jury's province to determine.

While undertaking this inquiry, we remain mindful that one of the basic attributes of sovereignty retained the by the States forming the United States is the declaration and administration of their own systems of criminal justice.

These twin considerations, historical practice and respect for state sovereignty, counsel against extending Apprendi's rule to the imposition of consecutive sentences for discrete crimes.

First, the decision whether the sentences shall be served concurrently or consecutively was not made by juries at common-law.

Second, specification of the sentencing regime for multiple violations of state law has long been considered the prerogative of state legislatures.

For those reasons detailed further in our opinion, we hold that the Sixth Amendment does preclude the multiple sentencing scheme, Oregon's legislature has adopted.

Justice Scalia has filed a dissenting opinion in which the Chief Justice, Justice Souter and Justice Thomas joined.